The grand unified theory of Brett Kavanaugh’s jurisprudence is that contemporary presidents don’t have enough power, and the courts should expand executive authority to nearly monarchal heights. It is not a surprise, then, that this zealous supporter of the imperial presidency once questioned the most famous judicial incursion on presidential independence of modern history. On Sunday, the Associated Press’ Mark Sherman reported that, in 1999, Kavanaugh expressed reservations about the Supreme Court’s decision in United States v. Nixon, the Nixon tapes case. Maybe, he mused, “Nixon was wrongly decided” because it “took away the power of the president to control information in the executive branch.” Should it be overruled? “Maybe so,” he concluded.
Later in his career, after he had emerged as a possible Supreme Court candidate, Kavanaugh seemed to reverse course. In 2016, he praised Nixon as one of “the greatest moments in American judicial history” because “judges stood up to the other branches” and “enforced the law.” But no matter what Kavanaugh thinks about Nixon today, that 1999 comment still provides a fascinating insight into his views on executive power. While the Supreme Court’s specific reasoning in Nixon has been questioned on both the left and right, Kavanaugh did not merely criticize its logic; he condemned the court’s decision to hear the case in the first place. This radical critique of Nixon reveals a judge who is eager to shield the president from oversight—precisely the kind of person Donald Trump would want on the Supreme Court as Robert Mueller’s investigation intensifies.
Nixon revolved around secret recordings of White House conversations that incriminated President Richard Nixon in the Watergate scandal. When special counsel Archibald Cox sought recordings made in the Oval Office, Nixon had Solicitor General Robert Bork fire him in the “Saturday Night Massacre.” Facing political backlash, the Nixon administration replaced Cox with Leon Jaworski, who secured a grand jury indictment against seven of the president’s confederates. (Nixon himself was named an unindicted co-conspirator.) Jaworski then obtained a subpoena from a federal district court ordering the White House to turn over certain tapes relating to key conversations in the conspiracy. Nixon asserted executive privilege and appealed the case to the Supreme Court.
In a unanimous decision (with Nixon’s one-time assistant attorney general William Rehnquist recused), the Supreme Court ruled against Nixon. The president, Chief Justice Warren Burger explained, is generally empowered to maintain the “confidentiality of high-level communications.” But this executive privilege “must yield to the demonstrated, specific need for evidence in a pending criminal trial,” because “an absolute, unqualified privilege” would impede the judiciary’s “primary constitutional duty” to “do justice in criminal prosecutions.” A prosecutor pursuing a criminal investigation, Burger concluded, may overcome the privilege when he seeks evidence from the president that is relevant, admissible, and specific. And the Nixon tapes—which the justices had heard under seal—clearly met this standard.
Specific aspects of Burger’s opinion have since been disputed. The decision, issued less than three weeks after oral argument during the court’s usual summer recess, was a rushed collaboration between multiple justices, and it shows. A digression about the Fifth and Sixth Amendments makes little sense, for instance, and Burger’s balancing test is not exactly a model of clarity. But the broader holding—that the court had a duty to decide this dispute and compel Nixon to turn over the tapes—remains widely celebrated today. It truly was, as Kavanaugh put it in 2016, a paragon of judicial independence, a moment when judges “stood up to the other branches” in a moment of national crisis.
If Kavanaugh really did see the light on Nixon sometime after 1999, he should be able to explain his change of heart to the Senate Judiciary Committee. But nothing in his post-1999 opinions or jurisprudence indicates the fundamental shift in outlook that would be required for him to make such a dramatic reversal. To the contrary, Kavanaugh’s work over the last two decades builds on the basic premise of his anti-Nixon comments. Consider his precise critique of the decision, which attacks not Burger’s substantive holding but rather the court’s decision to take the case in the first place:
But maybe Nixon was wrongly decided—heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently. … Maybe the tension of the time led to an erroneous decision. … Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so.
Here we have a straightforward evaluation of Nixon’s flaws: The case rolled back executive privilege too far by allowing a “subordinate executive branch official” (the special prosecutor) to subpoena recordings of private White House conversations. And so, instead of rejecting Nixon’s expansive claim of privilege, the Supreme Court should have thrown out the case without deciding the merits. To Kavanaugh, the fundamental error of Nixon is that the court treated the subpoena fight as a legitimate “case or controversy” between two parties, when, in reality, it was just a fight between an executive branch underling (Jaworski) and the executive himself.
Put simply, Kavanaugh espoused a “unitary executive” vision of the presidency. Under this theory, the president holds all executive power, which cannot be limited by Congress or his inferiors. Kavanaugh gave a full-throated endorsement of the unitary executive in a January 2018 dissent declaring that the Consumer Financial Protection Bureau is unconstitutional because the president cannot remove the head of the agency without good cause. The CFPB, after all, is an independent body within the executive branch. Its director is, technically speaking, the president’s subordinate. And if every bit of executive power is vested in the president, then surely he can terminate the director of an executive agency at will.
Kavanaugh’s Nixon critique fits comfortably within this constitutional philosophy. Jaworski, as Kavanaugh reminded us in 1999, was a “subordinate executive branch official.” He sought tapes from his superior, the president, who refused to turn them over. Why should the judiciary get involved in a squabble between the president and some inferior within the same branch? To a unitary executive fan, Nixon’s preferences should trump Jaworski’s demands. The case is called United States v. Nixon, but a better name might be Nixon (subordinate) v. Nixon (boss).
For most of us outside the Federalist Society, these critiques of Nixon carry little weight. Once the unitary executive theory is set aside—as it should be, since it rests on a weak constitutional basis—there’s no reason why courts should not referee criminal investigations within the executive branch. But Nixon presents a real paradox for many conservative jurists. And, at least in 1999, Kavanaugh had the courage to acknowledge that, under his own theory of an imperial president, the Supreme Court had no business hearing Nixon.
Now he claims to have changed his mind—a politically wise move. As law professor and Slate contributor Steve Vladeck has noted, Kavanaugh’s views have obvious ramifications for the current special counsel. If Mueller attempts to subpoena the president, Trump will likely fight the matter. That dispute may reach the Supreme Court, where Kavanaugh could cast the deciding vote. And if Kavanaugh thinks a prosecutor in the executive branch can’t sue to enforce a subpoena against the president, then he would surely reject Mueller’s efforts to extract information from Trump.
There is a chance that, after 1999, Kavanaugh decided Nixon was in fact correctly decided. But no matter what he tells the Senate Judiciary Committee, it’s worth remembering that the underlying philosophy which led to his Nixon critique remains in full force today. Kavanaugh still wants the president to have a huge amount of power over the entire executive branch. That’s a fact no one can seriously dispute, no matter what Kavanaugh does or doesn’t believe about the Nixon tapes.
One more thing
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